Date: 20040407
Docket: T-1057-96
Citation: 2004 FC 528
BETWEEN:
AMBROSE MAURICE and MERVIN MAURICE
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by
THE MINISTER OF INDIAN AFFAIRS AND
NORTHERN DEVELOPMENT, and
THE ATTORNEY GENERAL OF CANADA
Defendants
- and -
MÉTIS NATIONAL COUNCIL
Intervener
REASONS FOR ORDER AND ORDER
[1] This is a motion brought by the plaintiffs seeking leave to amend their statement of claim for the fourth time and to convert their existing action (now almost eight years old) into a class action.
[2] In their motion, as originally filed, the plaintiffs also sought to add the Crown in right of Saskatchewan as a defendant, but they have now dropped that demand.
[3] The proposed amendments are vast in scope and constitute a complete re-making of the original action so as to change it almost beyond recognition. Rather than simply adding, deleting or rewording certain words, lines and paragraphs (and indicating the changes in the usual way by underlinings or ellipsis) the plaintiffs have rewritten the whole document.
[4] The following is an edited version of the plaintiffs' summary of the facts which they say have led up to and explain the filing of the present motion:
The Facts:
1) The Plaintiffs originally filed this action in order to support a claim that their community, the Sapwagamik Metis Community, had been and continues to be materially damaged by the establishment of the Primrose Lake Air Weapons Range ("Weapons Range") and their continued exclusion therefrom. The Plaintiffs maintain that the real issue here is about their community. They wish to continue to assert the community claim.
¼
2) Through three previous amendments the claim was significantly altered until in the last Statement of Claim, the 3rd, it became an action about two individuals.
3) The Plaintiffs were originally set out as one named plaintiff, Ambrose Maurice and Sapwagamik Local 176, the Métis Nation of Saskatchewan and The Métis Society of Saskatchewan. A series of motions resulted in significant amendments to the Plaintiffs. A named Plaintiff, Mervin Maurice, the son of Ambrose Maurice was added. Sapwagamik Local 176, the Métis Nation of Saskatchewan and the Métis Society of Saskatchewan were removed.
4) In the result the only remaining plaintiffs were the two named individuals. Their representative capacity on behalf of their community was lost, as were the interests of the Sapwagamik community itself. This was significant because the claim rests in large part on the Sapwagamik Metis Community's Aboriginal harvesting rights, collective rights, which were substantially infringed as a result of the establishment of the Weapons Range.
5) The fact that the Plaintiffs were reduced to two individuals was also significant because the claim asks for a Declaration that the Defendants violated the Plaintiffs' right to equal protection and equal benefit of the law without discrimination under s. 15(1) of the Canadian Charter of Rights and Freedoms. The Plaintiffs have, since the establishment of the Weapons Range, maintained that they, as a Métis collective, should have been treated equally to the Treaty Indian collectives of Cold Lake and Canoe Lake. This claim was not assisted if the comparison is between the treatment of two Aboriginal individuals and the treatment of an Aboriginal collective.
6) The relief claimed was also amended in the 3rd Amended Statement of Claim, to include a claim for general damages to the individually named Plaintiffs.
[5] I set out this extract because it demonstrates, in my view, that what the plaintiffs are now seeking to do is in effect to disavow or resile from the effect of their original statement of claim and of the various amendments which they have made thereto with leave of the Court and upon advice of their own counsel.
[6] The plaintiffs have also omitted at least one very important fact from their recital. In 2001, when leave was being sought to file the third amended statement of claim the Crown expressed concerns about the plaintiffs raising issues respecting Aboriginal title for the first time part way through the litigation. The then counsel for the plaintiffs responded by assuring me that the matter of aboriginal rights was only being mentioned as a background to the claim for unequal treatment contrary to section 15 of the Charter, in order to show that the plaintiffs had been treated unfairly in comparison to their neighbours who were treaty Indians. Accordingly, in permitting the amendment and in my capacity as case management judge, I ordered that plaintiffs' counsel make this clear and restrict the scope of what might otherwise be interpreted as a very broad historic claim (of precisely the nature of the claim now sought to be asserted) by writing a letter to Crown counsel which would serve in effect as a statement of particulars. That letter, sometimes referred to as a "comfort letter", provides as follows:
As you know, my clients' central complaint in this litigation is that they were not treated equally with other Aboriginal persons displaced from the Weapons Range. The damages they seek in this litigation are to compensate them for that unequal treatment to the extent that other Aboriginal persons received greater compensation for their displacement on the basis of criteria that discriminated against our clients contrary to s. 15 of the Canadian Charter of Rights and Freedoms.
[7] This letter is in stark contrast to the amendments now sought. While the Third Amended Statement of Claim was essentially a claim arising out of section 15 of the Charter, and the government's discriminatory treatment of the plaintiffs in the 1990's when it refused to accord to Métis people the same compensation for the earlier expropriation of their traditional lands as it had now agreed to give to Indians. The proposed Fourth Amended Statement of Claim is an Aboriginal rights and title claim and a fiduciary duty claim arising out of the original expropriation of the Primrose Lake Weapons Range in 1954.
[8] Also, although the plaintiffs now appear to wish it otherwise, the claim as originally asserted was not a representative action, but rather a damage claim by individuals. It is now sought to convert it into a class action.
[9] A further important fact omitted from the plaintiffs' recital is that, following the 2001 amendments, the parties, under my direction conducted discoveries after which a Pre-Trial Conference was held at which the number of witnesses, lay and expert, and types of proposed evidence and the probable length of the trial were canvassed. At the end of that conference an order to have the action set down for trial was made. The only reason a trial date has not been set is that plaintiffs, having changed their counsel, asked me to suspend the matter so that they might consider the necessity of amendments in the light of a decision of the Supreme Court of Canada.
[10] While this Court is generally sympathetically receptive to requests to amend pleadings, the granting of leave is not automatic. An amendment will not be allowed if it will cause prejudice to the opposite party and that prejudice cannot readily be compensated by an award of costs. The lateness of the stage at which an amendment is proposed, the number and importance of the amendments, the degree to which previously held positions are abandoned or changed will clearly be among the factors to be considered. There are also some forms of prejudice which simply cannot be compensated by a costs award even if, untypically, such costs were assessed on a solicitor and client basis.
[11] Here in my view, there can be no doubt that to allow the amendments proposed would greatly prejudice the Crown. Virtually all of the work done on this action over the past eight years, pleadings, documents, discoveries and even preliminary trial preparation would be lost and have to be re-done or at the very least re-assessed. It is hard to see how a costs order could compensate that. Also, since the principal thrust of the action has dramatically changed and its historical focus shifted from the 1990's to the 1950's, my experience in other aboriginal rights cases tells me that a vast amount of new background research, involving the retention of experts and extensive document searches, will almost certainly be necessary. The amendments would have the effect of nullifying the letter from former counsel which I have quoted above and which was a condition of the 2001 amendments. The proposal to convert the proceedings into a class action will raise a whole range of new issues which will need to be studied and assessed. Finally, the proposed amendments raise a serious question as to the possible limitation of some or all of the plaintiffs' claim; while that fact, in itself, is not enough to warrant refusing the amendments, since the alleged limitation could still be pleaded by way of defence, it constitutes a new and complicating factor in an action which, prior to the present motion, was virtually on the eve of trial.
[12] The motion will be dismissed. If the Crown seeks costs, I shall hear counsel on that question at a forthcoming case management conference to be held by telephone.
ORDER
The motion is dismissed, costs to be spoken to.
Judge
Ottawa, Ontario
April 7, 2004
FEDERAL COURT
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1057-96
STYLE OF CAUSE: Ambrose Maurice et al v. Her Majesty the Queen et al
MOTION IN WRITING PURSUANT TO RULE 369
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE HUGESSEN
DATED: April 6, 2004
WRITTEN SUBMISSIONS BY:
Jean Teillet FOR PLAINTIFFS
Cynthia Dickins and Linda Maj FOR DEFENDANT CROWN
SOLICITORS ON THE RECORD:
Pape & Salter
Vancouver, B.C. FOR PLAINTIFFS
Mr. Morris Rosenberg
Deputy Attorney General of Canada FOR DEFENDANT CROWN